Mr. Merrick. Yes, but not as to proof of money; but as to other
questions in reference to the distribution of routes and the loaning of
money by Dorsey, and by Bosler to Dorsey, and Dorsey's transfer of
the routes to Bosler as security for the loan as appeared in Vaile's
testimony.
The Court. I shall not interfere.
Mr. Merrick. I shall not attempt to arrest the course of counsel
unless there is ground for it, and I ask the Court that, there being
no evidence of this fact, that the counsel shall not--Mr. Ingersoll.
[Interposing.] I am going to show there is some evidence.
The Court. I understand it is a remark in reply to an observation of
your own.
Mr. Ingersoll. That is principally it. Now, they introduced the
warrants that had been drawn by the contractors and subcontractors from
the Post-Office Department; they proved that these warrants had been
paid to James W. Bosler, and that one after the other, hundreds had been
assigned to James W. Bosler. Now, then, I say, they say to us, "Why do
you not bring in James W. Bosler and prove your innocence?" I say why
did you not bring in James W. Bosler and prove our guilt? We opened the
door. We told you the name of the witness. We told you that he had taken
the routes; that he kept the books; that he disbursed the money, and
that we had lost money. Instead of robbing the Government the Government
has robbed us; and they say, "Why did you not bring Bosler?" and I say
to them, why did you not bring him? They know him, and they know he is a
reputable man.
Now, there is another point. I ask you all to remember what was said in
the opening, and I understand that a defence is bound by its opening,
bound by what it says to the jury. The question is, Has any fact been
substantiated in this case that contradicts a statement made in the
opening?
The Court. The defence has no right to avail itself of--Mr. Ingersoll.
[Interposing.] Of what it says.
The Court. Of what it says in its opening unless it is followed by
evidence.
Mr. Ingersoll. Certainly not, but it has a right to show that no
evidence has been introduced by the Government that touches that opening
statement. It has the right to do that, surely.
Now, then, Mr. Boone was the witness for the Government--a smart man.
He swore who were interested in the bidding. He told and he positively
swore that Dorsey was not interested in these routes. He gave the names
of the persons interested, and he swore positively that he was not.
Dorsey then, I say, had not the slightest interest. He loaned money,
he went security, he assisted in getting sureties on bonds, and you
recollect the trouble that they have made about some bonds. Has there
any evidence been introduced to show that there was a bad bond? Has any
evidence been introduced to show that the name of an insolvent man was
put upon any bond as security? Has there been any evidence to show
that any action was ever commenced on any of these bonds; any evidence
tending to show that every bond was not absolutely good? As a matter
of fact, the Government waived all of that. In offering the contract on
route 35015, Mr. Merrick made this remark:
"It is offered for the purpose of showing the contract made. The
contract itself is not an overt act. That is all right. There is nothing
criminal about that."
Good!
Nothing criminal about any contract, gentlemen. You will all admit they
had to make the bids, and if they were the lowest bidders it was the
duty of the Government to accept the bids and afterwards to make the
contracts in accordance with them. There was nothing wrong in that. That
is Dorsey's first step. His first step really was an act of kindness.
What was the second step? He was unable to advance any more money. Mr.
Peck, Mr. Miner, Mr. Dorsey, and Mr. Boone were unable to advance
the money, so Mr. Boone went out and Mr. Vaile came in, and the new
partnership agreed to refund this money that had been advanced; that
is, the money advanced by the other parties. What one gets another to
advance is really advanced by him as long as he is liable for it. Mr.
Vaile, a man of large experience and means, was taken in Boone's place.
Is there anything suspicious up to this time? That is the only test of
this whole question. Is it natural? If it is natural there is no chance
for suspicion. After Mr. Vaile came in, a written contract was made
on August 16, 1878. There is no conspiracy up to that time. Not the
slightest evidence of it; no arrangement with any officers up to that
time. Now, under the August contract, Mr. Vaile took the entire business
in charge, and he ran it, as I understand, until the first day of April,
1879. No officer had any interest in it then. There was no conspiracy
then. Vaile received all the money and paid it out. Here we stand on the
first day of April, 1879. Now, what is the history up to this time? That
John W. Dorsey, Peck, Miner, and Boone were bidders; that certain routes
had been awarded, they had not the money to stock the routes, and that
S. W. Dorsey advanced some money and went security; that afterwards
Boone went out and Vaile came in, and the contract was made by virtue
of which Vaile became the treasurer and knew everybody, and ran the
business to the first day of April, 1879. He swears positively that he
made no arrangement and that he paid no money. It is also in evidence
that in December, 1878, Stephen W. Dorsey and Vaile met for the first
time, and met in the German-American Bank for the purpose of settling
the claim upon which Dorsey was security, and replacing the notes upon
which Dorsey was, by notes of Vaile, Miner & Co. Afterwards these notes
were paid by Vaile and the security of Dorsey released. Now, in April,
1879, a division is made. The contract of August, 1878, was done away
with and a division 'of the routes was made, seventy per cent, being
taken by Vaile and Miner and thirty per cent, by John W. Dorsey and
Peck. In April, 1879, the parties divided instead of coming together.
They do not conspire. They separate. They do not unite. They go asunder.
From that moment they agree to have nothing in common. Each man takes
his own, and each man attends to his own and does not help anybody else
except when they insist that a contractor or subcontractor shall make
the affidavit. They made affidavits on the routes on which they were
contractors. That is all there is to it up to that time. Then these
routes were assigned to Dorsey for the purpose of securing him.
Now, I go to the overt acts charged against Stephen W. Dorsey. Do
you know I am delighted to get right to that page of my notes. I am
delighted that I now have the opportunity to answer and to answer
forever all the infamous things that have been charged against this man.
Here we are, before this jury, a jury of his fellow-citizens, a jury
that has the courage to do right. I have finally the chance of telling
here before men who know whether I am speaking the truth or not, what
has been charged against Stephen W. Dorsey and what has been proved
against him. Let us examine the overt acts charged. On route 38135 it
is charged that Miner, Rerdell and S. W. Dorsey transmitted a false
affidavit. The evidence is that the affidavit was made by Miner, not
by Dorsey, transmitted by Miner, not by Dorsey, and that it was not
transmitted as charged in the indictment, but transmitted on the 18th
day of April, 1879. There is no evidence that Dorsey even heard of that
affidavit, that he ever made it, that he ever transmitted it, that
he ever saw it, that he ever knew of its existence. That is the first
charge. There is not one particle of evidence to show that he ever knew
there was such a paper. Upon that written lie, upon that mistake
these infamous charges affecting the character of this man have been
circulated over the United States.
What is the next? That he with others filed false petitions. I am
telling you now all the charges; every one of them. What is the
evidence? Oh, it is splendid to get to the facts. The evidence is that
every petition is shown to have been genuine. There is no evidence that
he ever filed one or sent one, or asked to have one sent on that route;
and every petition is genuine and no charge made except as to one. In
one they said the words "quicker time" were inserted; but the very next
paragraph asked for quicker time, and nobody pretended that had been
inserted. Besides that, it was charged in the indictment to have been
filed on the 26th day of June. As a matter of fact, it was filed on the
8th day of May. It was never filed by Stephen W. Dorsey; it was never
gotten up by Stephen W. Dorsey. There is no evidence that he ever knew
of it or heard of it. Third, that he fraudulently filed a subcontract.
Two mistakes and an impossible offence. That ends that route. That is
everything on earth in it. I defy any man to make anything more out of
it than I have. I have told every word.
The next route is No. 41119. It is charged that Stephen W. Dorsey with
others transmitted a false oath. The evidence is that the oath was made
by Peck, and it was transmitted by Peck and not by Stephen W. Dorsey.
What else? That it is true. There are three mistakes in that charge.
They say Dorsey made it. Peck made it They say Dorsey transmitted it.
Peck transmitted it. They say it was false. The evidence shows it true.
Thai is all there is to that route. It is the only charge on that route.
No petitions were claimed to be false.
Now we come to route 38145. Let us see if we can do any better on
that. The first charge is, that Stephen W. Dorsey fraudulently filed a
subcontract. The subcontract was made with Sanderson, Sanderson got his
own contract filed. This charge was copied from the old indictment. It
is a mistake and that is all there is to it. These are the charges that
have carried sorrow to many hearts. These are the charges that have
darkened homes. These are the charges that have filled nights with grief
and horror; every one of them a lie.
The next route is 38156. The first charge is that he transmitted a
false oath. The oath was made by John W. Dorsey, and is true. The second
charge is of fraudulently filing a subcontract, an impossible offence.
That is everything on that route. Absolutely untrue.
Now we come to the next, No. 46217. The charge is filing base petitions.
The evidence is that every petition was genuine. Every one. Mr. Bliss
said--"We make no point about increase of trips on this route."
Every petition was for increase of trips. You will see that on record,
page 1008. That is the only charge on that route, gentlemen. Utterly
false!
Come now to route 38140. Charge: Filing false and forged petitions.
Evidence: All the petitions genuine. Second charge: Transmitting a false
oath and making it. Evidence: Oath made by John W. Dorsey, and true.
That is all there is to that route. If they can rake up any more I want
to see it. I have been through this record.
Route 38113. Charge: Fraudulently filing a subcontract. That is all. You
cannot fraudulently file a subcontract.
Route 40113. Charge: Filing false and forged petitions. Evidence:
Every petition admitted by the Government to be genuine. Good. Second:
transmitting a false oath. Evidence: Oath made by John W. Dorsey, and
the Government introduced no witness to show that it was false. See how
these charges fall. See how they bite the ground. That is all.
I have told you every one in this indictment; every one. You will hardly
believe it. Now let me give you the recapitulation. S. W. Dorsey is
charged on eight routes with having transmitted four false oaths.
The evidence is he never made one nor transmitted one, and that the
four oaths were all true. On five routes he is charged with having filed
false petitions. The evidence is that all the petitions were genuine.
None of the petitions charged in the indictment to have been transmitted
by him were transmitted by him. He is charged with filing fraudulent
subcontracts, and the evidence is that the subcontracts were genuine,
and besides that, as I have said a dozen times, it is utterly impossible
to fraudulently file a subcontract. Not a single, solitary charge in
this indictment against Stephen W. Dorsey has been substantiated. Not
one. He has been called a robber, he has been called a thief, but the
evidence shows he is an honest man. Not one single thing alleged in
that indictment has been substantiated against him, and I defy any human
being to point to the evidence that does it. Now think of it. All this
charge has been made against that man upon that evidence; no other
evidence; not another line so far as the indictment is concerned.
What is outside of the indictment? That he wrote two letters, taking
possession of routes that had been turned over to him as security, which
he had a right to do. What else? That he got up some petitions, or had
them gotten up, in the State of Oregon. The man who got them up was
brought here as a witness. I believe his name was Wilcox. He swore that
everything he did was honest, and that every name to every petition was
genuine. Now let us see. Another point has been made upon S. W. Dorsey.
I want to read it to you. This is from the argument of Mr. Merrick:
"Peck, John W. Dorsey and Miner, or some other one of Stephen W.
Dorsey's friends. Who was making up this conspiracy? Who was gathering
around him arms and hands to reach into the public Treasury for his
benefit, while his own were apparently unoccupied with pelf? S. W.
Dorsey. 'My brother and brother-in-law will go in, and Miner, or if not
Miner, then one of my other friends.'"
This is quoted.
"One-of S. W. Dorsey's other facile friends. That was in 1877,
gentlemen, the morning of this day of fraud and criminality. In that
room where Boone and S. W. Dorsey sat arose the sun, and there was
marked his course. There was fashioned the duration and the business of
that criminal day."
Now, let us see what the evidence is. The object of that speech is to
convince you that Dorsey said to Boone. "I will either put in Miner or
one of my friends." Do you know that there is not money enough in the
Treasury of the United States, there is not gold and silver enough in
the veins of this earth to tempt me to misstate evidence when a man is
on trial for his liberty or his life. Let us see what the evidence is:
"Q. Who else besides his brother-in-law and brother?--A. I could not say
positively whether Mr. Miner's name was mentioned. He either mentioned
his name or a friend of his from Sandusky, Ohio."
Now, I submit to you, gentlemen, what does that mean? Mr. Boone, in
effect, says, "He told me either it was Miner or a friend of his from
Sandusky. That is, he either described Miner by his name or he described
him as a friend of his from Sandusky." Then there was objection made,
and after that comes another question:
"Q. Was anything said of Mr. Miner's coming to Washington?--A. I could
not say whether his name was mentioned or a friend of his; a personal
friend."
What does that mean? Boone cannot remember Whether he called him Miner
or called him a friend of his from Sandusky. What else?
"A. There was to be nobody that I understood outside of the parties I
spoke of.
"Q. You and John W. Dorsey and Peck?--A. And Mr. Miner."
"Q. Or one of his friends?--A. Or Mr. Dorsey's friend. The arrangement
made was not made until they came here. It was only to prepare the
necessary blanks and papers pending their coming because the time was
getting short, and it was necessary to get the information to bid upon.
Nothing was said about any interest at all until after they came here,
and then there was a partnership entered into."
Now, I ask you, gentlemen of the jury, what is the meaning of that
testimony. The meaning is simply this: Boone could not remember whether
he mentioned Miner's name or called him a friend of his from Sandusky,
yet the object has been to make you believe that the testimony was
that S. W. Dorsey said, "I will either have Miner or I will get another
friend of mine." Dorsey had no interest in it, not the interest of one
cent, not the interest of one dollar, directly, indirectly, or any other
way. He had no interest in having a friend of his. All that Mr. Boone
said is that Mr. Dorsey either called this man Miner or described him as
a friend from Sandusky, Ohio. The evidence is that Mr. Miner did come,
and the evidence is that the arrangement was made. What else is there
outside in this case against Stephen W. Dorsey? I ask you to put your
hand upon it. I ask anybody to point it out. What other suspicious
circumstance is there? I want you to understand that all the suspicious
circumstances in the world are good for nothing. All the evidence on
earth tending to show a thing does not show it. Anything that only tends
that way never gets there; never.
You cannot infer a conspiracy. Unless you have the facts proved, you
cannot infer the fact and then infer the conspiracy. There has not
been--I want to say it again--there has not been a solitary fraudulent
act proven against Stephen W. Dorsey. They have not done it and they
cannot do it. All I ask of you, gentlemen, is to find a verdict in
accordance with this testimony.
May it please the Court, it appears from the evidence in this case, I
think the evidence of Mr. James, that Stephen W. Dorsey at one time,
about sixteen or seventeen months ago, made a statement in writing of
his connection with all these routes. That statement he gave to the
Attorney-General and the Postmaster-General. There is no evidence of
what was in that statement. The only evidence is that such a statement
was made, embracing his connection with these routes.
The Court. You offered to prove that.
Mr. Ingersoll. Oh, no. The reason it was established was I wanted to
show whether that statement was made before or after Mr. Rerdell made a
statement. The fact simply appears that he made a statement.
The Court. You offered to prove the fact.
Mr. Ingersoll. I do not remember offering to prove it. I proved it.
The Court. If it was not proven--Mr. Ingersoll. [Interposing.] I did
prove it as a fact.
The Court. That he made a statement.
Mr. Ingersoll. Yes, sir. Right here it is [taking up the record].
The Court. Oh, well, you cannot base any remarks upon that.
Mr. Ingersoll. Let me read what the evidence says:
"Q. Was this statement of Rerdell's made to you after you had received
the statements of S. W. Dorsey as to his connection with all these
entire routes or with this entire business?
"The Witness. To what statement do you refer?
"Mr. Ingersoll. To the statement that was made in writing and given to
you and the attorney-general by ex-Senator S. W. Dorsey?
"A. It must have been after that.
"Q. You mean Rerdell's statement was after that?--A. Yes, sir.
"Q. Did you ever see that statement made by Senator Dorsey?--A. It was
referred to the attorney-general.
"Q. Did you ever see it?--A. Certainly.
"Q. Do you know where it now is?--A. I do not."
I am not going to say a word about what was in that statement, but the
Court will see that that has a direct bearing upon their action with
regard to Rerdell's statement whether it was made before or after, which
I will endeavor to show, and the only point that I wanted to make upon
that statement now, was that the Government has not endeavored to prove
that anything in that statement was inconsistent with the evidence in
this case. I am not going to say what the statement was; simply that he
made a statement, and it follows as naturally as night follows morning,
and morning follows night, that if that statement had been incorrect it
would have been brought forward. That is all.
The Court. For anything the Court knows it might have been a confession.
We do not know anything about it.
Mr. Ingersoll. If it had been a confession it would have been here. That
is the point I make. If there had been in that anything inconsistent
with the testimony it would have been here.
The Court. Probably it would.
Mr. Ingersoll. Yes, sir; that is my point.
The Court. When a man is charged with crime no man has a right to say
that because he did not deny it that is evidence of his guilt.
Mr. Ingersoll. No, sir; and no man has a right to say that because he
did deny it is evidence of his innocence.
The Court. It is not evidence either way.
Mr. Ingersoll. It is not evidence either way, and if I am charged with
a crime and I make a written statement to the Government of my entire
connection with that thing, and they go on and examine it for one year
and finally finish the trial without showing that that statement was
incorrect, it is a moral demonstration that my statement agreed with the
testimony.
The Court. On the principle, I suppose, of an account rendered and no
objection made?
Mr. Ingersoll. Good. That is a good idea.
The Court. I do not see anything in that.
Mr. Ingersoll. I see a great deal in it, and it is a question whether
the jury can see anything in it.